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A tough day in the royal office for Henderson Maxwell

A gripping day at the Royal Commission on 24 April 2018 saw the focus on poor advice shift from the major banks and AMP to a smaller ‘independent’ financial advice business, Henderson Maxwell. Sam Henderson has built a high profile in the independent advice space with regular appearances on Sky Business and The Panel, and columns in the AFR, Sydney Morning Herald and Money magazine. As the successful owner of a boutique advisory firm in Sydney with financial advice awards under his belt, $170 million under management and a recent equity sale to AZ New Generation Advisory, he presented as a role model for aspiring wealth managers across the country.

Safe to say he had his toughest day in the office ever, as an aggrieved client volunteered her advice experience with some startling revelations. The client, Donna McKenna, is a Commissioner with the Fair Work Commission.

The video of the client’s and Sam Henderson’s evidence is here, starting at about 5:00:00 on Day 17.

Focus on the actual advice

There is a lot to go through. The biggest issue was advice to roll out of a rare ‘deferred benefit’ public service scheme, with the consequence of the client missing out on a potential $500,000 deferred retirement benefit two years later. Mr Henderson said this background was not relayed to him by his staff at the time of the advice.

The direction to inject the proceeds into a new ‘Henderson Maxwell Accounting’ originated SMSF and then invest into a ‘Henderson Maxwell Investments’ managed account share portfolio compounded this poor advice. The Commission heard the fees on the managed account were 1.1% to 1.8% depending on the amount, plus 0.525% brokerage. The recommendation included using a third party managed account platform that Mr Henderson was an equity holder in at the time (but has since sold out of). The client advised the Commission that she had repeatedly told Mr Henderson at the initial meeting that she did not have the skills or time to run an SMSF and definitely did not want one, but was told, “We’ll look after it.”

All this for a $4,950 up-front advice fee, plus the client moving from a current annual fee structure of $2,700 to $14,642 per year with setup fees of $6,000.

Exacerbating the whole process, his assistant pretended to be the client at least four times in phone calls to the client’s existing superannuation fund, his non-existent Masters degree was recorded on regulatory client documentation and finally a series of emails with the Financial Planning Association in an investigation was less than complimentary about the client.

It’s difficult to think of anything else that could have gone wrong.

Advice without commissions will come at a cost

I feel for Sam a bit, as public service funds are often confusing and generally have a number of subtle benefits not normally found in other superannuation products that are available to the general public. When a client walks in with significant funds in one of these schemes, the adviser must get the facts straight. The fact that the fund repeatedly told his assistant the deferred benefit would be lost shows some serious lapses in the background research.

In the past, I have found that usually a client is better off to remain where they are for these reasons, and the advice opportunity should be used to find other facets of a client’s financial life that may need attention.

Carelessness on this point aside, the remainder of the advice shows inadequate research and cookie-cutter advice that often plagues the advice industry. Clearly, it’s time is up.

As the Royal Commission moves from discovery to action, and the public demands more client-centric advice that is driven by client best interests, a new dawn approaches for advisers who wish to do the right thing and be successful. The next step will be managing the client expectation that good quality advice, without the commissions and aligned interests, simply cannot come cheap.

25 Responses to A tough day in the royal office for Henderson Maxwell

The question or test (obviously failed) for Slam “Bam” Henderson is..If Donna McKenna were your own Mother what advice would you give to her?

Also failed this…..

Section 961J requires that an advice provider should not act to further their interests or those of their related parties over those of the client when giving the client advice. In complying with this obligation, advice providers should consider what a reasonable advice provider without a conflict of interest would do (RG 175.375, 376).

Mind you ‘failure’ of the above is still happening almost everyday in those ‘vertically integrated’ businesses recommending SMSF’s (licensed and unlicensed accountants included).

The Industry funds in addition can’t get their latest TV Add finalised soon enough. Does anyone know who pays for the cost of all those TV adds by the way?

I agree Roger, i saw some news the RC is recommending criminal charges here and hopefully they will investigate more forensically if there is any evidence this staff member did not act on her own initiative and in isolation. It’s implausible for me also.
If so they might have to add perjury to the list of potential charges… “I can say though, for the record, that I was not aware of the impersonation, I was quite disappointed … it was inexcusable.”
Tough day in the office indeed, there might be tougher times ahead though.

Cookie Cutter? Its worse than that….”Cookie Cutter” in say putting the client into a diversified indexed portfolio at say 30bps would be a reasonable thing to do.

The 160-200bps++ ongoing fees, into a fund that you have a financial interest in, plus annual review and advice fees is outrageous. This is typical of the mentality of an industry who believes they are “worth” whatever they can get away with. Smoke, mirrors and stitch ups. That is the game…

My biggest fear out of this is that babies will be thrown out with bathwater and that people like me, who are happy with the advice we’re getting and have a good relationship with our adviser, will suffer as the industry winds down and good people leave.

I don’t want my adviser to quit his business in disgust simply because Catherine Brenner somehow weedled her way into the Chair of the AMP Board. He’s been with them for more than 30 years doing a great job, putting investors like me into appropriate structures (eg my SMSF) and giving wise counsel about our investments. And he does this for a very reasonable, flat, fee for service.

Will the Royal Commission at any stage acknowledge the many decent people in the industry or is it’s brief only about destruction?

It seems utterly implausible that a subordinate would, on her own initiative, ring the super fund as an impostor and then not pass on her findings to her boss. Yet Sam claimed she did precisely this. Why has he been allowed to throw her under the bus unchallenged? Commissioner Hayne certainly seemed to imply his doubts – see his remarks at the end of the hearing.

Definitely many major flaws in Sam’s advice and process but it is worth pointing out a couple of meaningless claims

1. Didn’t disclose his immaterial holding in listed share of platform provider (and then sold them when became aware). Really? How many Advisers do you think have a holding in Macquarie, Westpac, NAB and ANZ and recommend one of their platforms, investment funds or insurance policies. And by the way, how many Accountants have shares in XERO, or Class Super and distribute their products

2. Potential criminal proceedings for including a wrong qualification in his FSG. Really? Give me a break.

With your point 1 there is a difference. Many of these advisers used some of these smaller platforms knowing that a float of the business was coming and they would be favourably looked after with stock in the float. This is a very different scenario to holding shares in a company with many other interests such as banking, and that is widely held and already listed on the ASX, has such a significant market cap that a planners individual use of a platform is not going to have a material impact on that market cap.

I bet Sam Henderson regrets the day he took on Donna Mckenna as a client.

He underestimated her intelligence and tenacity, tried to sell her expensive cookie-cutter advice, which was utterly inappropriate for her circumstances and against her express wishes. He also failed to disclose he had a financial interest in the fund he was so keen to put her into. He lied about his qualifications, and his employee impersonated the client on at least 4 occasions. Would the employee have done that without direction? And if so, why hasn’t she been terminated.

But worst of all for Sam and thankfully for the community, HE GOT CAUGHT.

You say you feel a little sorry for Sam, but you don’t ask the obvious question. The same one as Ms McKenna did in the witness box when summing up why she decided to disclose her revolting experience with Henderson Maxwell. If someone with her education, background and standing in the community is treated in this way, what hope has the ordinary person in the street got? If this was the best that the “Advisor of the Year” could dish up, then what does that say about the rest of the industry.

By implication one is left wondering how many times Sam and others in the industry were not caught? Yes, the guy will fall hard, but on the evidence, he climbed pretty high on lies, shortcuts and the selling of an inferior cookie cutter product for big big money without disclosure. The only wealth creation Sam seems to have been interested in was his own, not Ms Mckenna’s.

A little time away will give Sam time to reflect on how he might have acted if he had chosen to do so in a manner that was ethical, moral and in the best interests of his client, rather than himself. It is a good lesson to the rest of the industry to do the same.

A reader has complained that we edited his comment. Here is our response.

“We want Cuffelinks to have a respectful debate and if we edit or refuse to publish a comment, it’s because we feel it crosses a line. If you read some of the comments sections in the trade media, it often descends into a slanderous screaming match which discredits everyone.

We decide what Cuffelinks is willing to publish and we are not an outlet for people to vent their unbridled anger. I have already put a note on a Royal Commission article saying some comments will not be published.

Essentially, we try to provide all the information a potential new investor might need through our website, blogs, emails, webinars and podcasts with the aim of educating new clients about what we do and how we do it. We also have a 1300 number and the ability to book a callback, for those not fully comfortable with a solely online investment environment.

Once a client is comfortable with the way we invest, we provide free limited investment advice to those who would like a hand in allocating risk to their portfolios using our products through our online onboarding portal. This process is also able to distinguish situations where our investment product may not be suitable and refers it to me for further review.

I agree there is certainly the potential for conflicted recommendation advice in any in-house investment solution, which is why we strive to remain a recommendable investment option that other (non-aligned) advisers feel is a good solution for their clients.

Yes Tim, and that striving or having alternatives available is what every vertically integrated model says they do. The problem comes when one alternative is commercially more beneficial. People can’t help themselves they are human despite best endeavors. You convince yourself to the point of belief your path is correct and transparent.. But when someone truly independent like rc lawyers break it down, there are conflicts. And when faced with that people will still argue to the death that they are different. Only a genuine separation of product and advice will see a permanent resolution from the problem no matter how commercially challenging that may be for many business models from here. My 2 bobs anyway.

There you go I feel much better now, the “firm” the Aus. Government with its own unfunded DB schemes (funded by all Aus. tax payers) can make retrospective changes to our Super rules, though somehow create windfalls for their long serving “firm” employees.

Hi Noddy – I feel you may have misinterpreted the ‘feel for Sam’ line.

The intent there was to highlight the fact that if a client comes to an adviser for advice on complex matters, particularly public service schemes (GESB is another example that springs to mind) then the onus is on the adviser to ensure that there is capacity to properly assess the merits and relate back to the objectives and needs of the client. Clearly, there was a failure here.

In regards to the FPA, of which I am a member, I’ll leave comment on the handling of the matter for another day. Suffice to say it remains unclear whether all the evidence brought to the Royal Commission (feigning identities, misleading tertiary education etc.) was available previously to the FPA. I would like to think that if they were in possession of the full story then punitive measures would have been much more severe.

On reflection on the industry, I think we both agree there is plenty of work to be done.

As an adviser and industry participant, I can comfortably say that there are plenty of quality advisers, doing the right thing, not wanting to be tarred with this ugly brush. I choose to occasionally enter the public arena to help provide some balance to the usual advice bashing rhetoric that arises when a bad (in this case, particularly egregious) example hits the spotlight.

Tim – I don’t believe that I have misinterpreted anything. When the Henderson Maxwell employee called Donna McKenna’s Superannuation Fund administrator four times impersonating her, they were told clearly that rolling the fund over before Donna turned 58 would cost her $500,000.

Despite knowing this, Henderson Maxwell advised her to roll her super into an SMSF and invest in their own managed funds that they would take further fees from. “Mr Henderson said it was “most likely” that he instructed his staff to make the calls where they impersonated Ms McKenna”.

When entrusted with responsibility to provide advice on investing and protecting Donna’s life savings they tried to take her down a path that would be hugely detrimental to her for the financial benefit of Sam Henderson and his company.

Most reasonable people would describe those actions as “unconscionable” not just “serious lapses in the background research”.

It defies logic that any amount of background research would have made any difference when, as you have stated yourself, they were told repeatedly that the deferred benefit would be lost.

Please don’t come up with a defense based on public service funds being confusing or complex when the facts in your own article show that the advice company clearly knew of the detrimental effect of rolling over in this situation.

Don’t forget that he didn’t know the 7 safeharbour steps under BID. You can say what you want about the big licensees but they do a good job in ensuring their staff are aware of their legal obligations.

I can only attribute Tim Fuller ‘feeling for Sam a bit’ to the very human reaction such a spectacular fall of this role-model on almost every criterion evokes: know-your-client; basic integrity; undisclosed and unacceptable conflicts of interest and duty; convenient lapse of memory, skirting the risk of perjury; recalcitrance against subsequent complaint; absence of meaningful mea culpa and remediation; quitting the dispute resolution body.
Or, the familiar ‘there but for the grace of luck go I’ moment, common in every trade association.
The danger is not that this took place (we know from other cases this is not uncommon in financial planning). But for the chance of the affected client being also high profile, it might have never seen the light of the day.
Those of us who worry about the financial engagement and literacy of the common person forced into long term investment now have to get back to basics, and wonder about those of those who have been profiting from the compulsion. The planning industry that has been spruiking the need for advice has much for introspection, reform and not-a-few punitive punishments, and not excluding hara-kiri. Derivative occupations have no inherent right to continue, and disruption into oblivion must remain an option.
The analogy used by planners to market their wares as a means of achieving better financial ‘health’ can be employed to illustrate Sam’s case. Think of a felicitated medico, ignoring obvious symptoms, accessing client details through impersonation, then prescribing a known mortal procedure in a co-owned hospital. The liability insurer, forget the medico, would go insolvent.
We read of Bernie Mad-off, the ex-head honcho of NASDAQ now in incarceration for infinity, and hoped ‘not again’. Wrong.

Tim – could you please elaborate on why you “feel for Sam a bit”. As a Financial Planner and presumably a fellow member of the FPA, I’m interested in why your article doesn’t express the view that the FPA should have banned Sam Henderson from holding a Financial Planners license when this complaint was made to them in May last year and referred the matter of impersonating a client to the Police for investigation of potential criminal charges.

You have chosen to publish your opinions on this matter and managed to express empathy for Sam but none for the clients (victims) that paid him for professional and unbiased advice, only to be advised to invest their money in vehicles that in turn provide him with additional fees. You are the only commentator on this subject that has managed to come to the conclusion that Sam was just having a bad day. Is it lost on you that the exposure of this disgraceful and unforgivable behaviour reflects incredibly poorly on your profession?

What shameful conduct. You should not be awarded financial planning qualifications if you don’t know that withdrawing from a defined benefit scheme early will invoke serious monetary implications. Be VERY wary when seeking financial advice!